Criminal Proceeds (Recovery) Act 2009

Question 1

Purpose of the act

Answer 1

Section 3

(1)The primary purpose of this Act is to establish a regime for the forfeiture of
property—

(a) that has been derived directly or indirectly from significant criminal activity;
or
(b) that represents the value of a person’s unlawfully derived income.

Question 2

Circumstances under which criminal proceeds recovery action can take place

Answer 2

Section 5

When a “Qualifying instrument forfeiture offence” has taken place

Means an offence punishable by a maximum term of imprisonment of 5 years
or more; and

Includes an attempt, conspiring, or being an accessory to
an offence if the maximum term of imprisonment is 5 years or more

Question 3

Practical application of the act

Answer 3

Onus is on the prosecutor to make the court aware if there are any proceeds of crime that should be considered for a qualifying offence.

It is incumbent that the O/C file notifies the crown that there is property that is proceeds of crime so they can file a “prosecutors notice” with the court advising them to consider seizure

Question 4

Purpose of a Restraint of instrument of crime

Answer 4

Property that is an instrument of crime may need to be restrained while the criminal proceedings take their course, to prevent disposal of the asset or erosion of its value by being further encumbered (eg mortgage on a house)

This will require an ‘application for restraining order relating to instrument of crime’, under s26

Question 5

Four consideration before preparing a “Restraint of instrument of crime” application

Answer 5

• the value of the asset
• equity in the asset
• any third party interest in the asset
• the cost of action in respect of the asset.

Question 6

Who do you obtain assistance from with investigations?

Answer 6

• Financial Crime Group
• Asset Recovery Unit
• Prosecutions (For restraint application)

Question 7

“Restraint of instrument of crime” application requirements

Answer 7

• Officer in Charge details

• Offender(s):
− details, charges,criminal convictions.

• Search warrant - describe the nature of the offending discovered at or involving the property (asset) concerned.
• Admissions made during interview(s).

• Property:
− describe property sought to be restrained and its value
− show that offender owns, has custody or control.

Question 8

What must occur before Criminal Proceeds action can be taken

Answer 8

A restraining order is the first step in the asset seizure process.

An application made to the High
Court must show reasonable grounds for belief that the property is tainted –
that it has been acquired, or directly or indirectly derived, from “significant
criminal activity”.

Question 9

Significant Criminal Activity - meaning

Answer 9

Section 6
If activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a) that consists offence/s punishable by a maximum
term of imprisonment of 5 years or more; or

(b) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.

Question 10

Tainted Property meaning

Answer 10

any property that has been acquired as a result of significant criminal activity

Question 11

5 things to cover off in Suspect interview

Answer 11

• suspect’s legitimate income
• suspect’s illegitimate income
• expenditure
• assets
• liabilities
-Any Statements of financial position (records)